Tech community split over WIPO broadcast treaty

What would it take to get Sony and the EFF on the same side? The WIPO …

The USPTO is today holding a roundtable on the proposed broadcasting treaty being hammered out by the World Intellectual Property Organization (WIPO), and a collection of industry and public interest groups will get the chance to air their concerns to the US government.

These groups have issued a joint statement outlining six areas of concern with the current draft of the treaty. The first and most important of these calls the very justification for such a treaty into question. "We remain unconvinced that a treaty is necessary at all," says the statement. "We know with concern that treaty proponents have not clearly identify the particular problems that the treaty would ostensibly solve, and we question whether there are in fact significant problems that are not addressed adequately under existing law."

The statement also raises questions about the scope of the treaty, the possible exceptions and limitations that would be allowed by signatories, the effect on home and personal networking (including the transmission of content across a home network), and the liability that might be faced by intermediaries. It's signed by an impressive and eclectic group that includes the American Library Association, AT&T, the Center for Democracy & Technology, the Consumer Electronics Association, Dell, the EFF, Hewlett-Packard, Intel, Sony, TiVo, and Verizon.

While the document represents the areas of agreement between the groups, many of them have more things to say. The EFF, for instance, has issued its own, more detailed statement that calls for Congressional hearings on the treaty because of its potentially enormous impact on US society. The EFF worries that the entire process has taken place without adequate consultation of all those involved.

"While we appreciate the opportunity to comment today," they say in their statement, "we note that roundtable participation was limited to 40 persons and allocated nearly two hours. We remain troubled by the fact that no analysis appears to have been undertaken of the significant changes that the proposed Treaty would entail for US law, the public domain, consumers' rights and the technology sector. Given the significant policy issues raised by the treaty, we strongly support the holding of Congressional hearings to hear from the full range of constituencies that will be impacted by this treaty."

The broadcast treaty (draft text), if ratified by the US, would give broadcasters a new set of legal rights over material that they transmit. The worry is that broadcasters could use these rights to curtail access to public domain material and to limit fair use. While the initial impetus for the treaty discussions was signal theft, it has expanded into discussions of webcasting rights and DRM measures (called "Technological Protection Measures" in the draft) with the potential to limit consumer use even after broadcast (think broadcast flags).

Because the US already has a robust copyright regime and has laws against theft of service, many question the need for any additional broadcasting rights. It's not as though the US broadcasting industry has suffered without these rights for the last century—indeed, they have done so well that US media now dominates the world. The treaty would provide these broadcasters with an additional right to control the retransmission of material that they originally aired, even if such material is in the public domain, or even if the retransmission constitutes fair use.

On the other side

But not all tech companies are lined up on the same side of the ball. Amazon, Apple, AOL, and Microsoft, for instance, are all members of the Digital Media Alliance, a group that argues for the ratification of the WIPO treaty, along with its expansion to explicitly include webcasting.

In support of its position, the group's fact sheet includes the story of iCraveTV, a Canadian service that re-broadcasted US television channels over the Internet—without permission. As DiMA's own writeup indicates, iCraveTV was put out of commission by the US courts soon after, apparently undermining the entire point of the story, which is to argue that new rights are necessary to prevent this sort of thing.

The group's main point is that any new rights should be technology-neutral; that is, they should not apply to traditional broadcasters but not to webcasters. This makes obvious and intuitive sense, but only if you grant the premise that traditional broadcasters should be granted a new type of "broadcast right."